Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

Readers of Failed Evidence know that almost three quarters of wrongful convictions overturned through DNA feature incorrect eyewitness identifications; it’s the single largest source of error in these cases. Readers also know that a growing number of jurisdictions (for example here and here,) have adopted changes to eyewitness identification procedures to eliminate these errors, through blind administration of lineups, use of sequential lineups, and other procedures that decades of research has proven to reduce these errors greatly.

But the NIJ study concludes that most of agencies have no policies for how officers conduct these crucial procedures. Eighty-four percent of the responding police departments said that they had no policy for live lineups, and sixty-four percent said they had no policy for conducting photo lineups.

The study was conducted for NIJ by the Police Executives Research Forum, “a police research organization and a provider of management services, technical assistance, and executive-level education to support law enforcement agencies.” PERF surveyed hundreds of U.S. police agencies, large and small, to determine how many had at least taken the step of creating a policy to require officers to use at least some of the recognized best practices for eyewitness identification. PERF researchers found larger police agencies more likely than smaller ones to have a policy in place, but even among the large agencies, fully twenty-five percent did not have a policy.

For those who follow these issues, as I do, the fact that so much of the law enforcement establishment has failed to make changes in basic investigative procedures is not entirely shocking; the resistance to science and the changes it points to is the central theme of my book Failed Evidence. But the results of the study are nonetheless disappointing, if only because eyewitness identification reform is one of the areas in which there is the greatest consensus that basic changes are needed; there is also broad consensus one what those changes needed most are: blind lineups, sequential lineups, valid ways of dealing with witness confidence statements, instructions to witnesses, and the like.

Although science has long been recognized as our most reliable pathway to truth, people are sometimes reluctant to accept scientific evidence, particularly when it challenges established practices or cherished beliefs. In Failed Evidence: Why Law Enforcement Resists Science, David A. Harris accuses police and prosecutors of unwarranted skepticism toward science and tries to explain their perspective. His provocative book will interest those concerned broadly with rejection of science as well as those interested in the U.S. criminal justice system.

In connection with my talk today, Nov. 8, on Failed Evidence at the University of Minnesota Law School, I’ve been interviewed by Minnesota Public Radio. The interview is posted today as part of The Daily Circuit program. You can get to it here.

I was a guest on WYPR Public Radio’s “Midday” program today, discussing Failed Evidence. Today was the monthly “Midday on Science” show, and host Dan Rodicks and regular science contributor John Monahan asked great questions on everything from DNA to more traditional forensic sciences to eyewitness identification and false confessions. Listeners asked terrific questions too.

You can hear the whole show by clicking here and clicking on the audio button.

Today, September 20, at 5:30 p.m., I’ll discuss Failed Evidence: Why Law Enforcement Resists Science (NYU Press) at an author’s talk and panel discussion in New York City at John Jay College of Criminal Justice today, September 20, at 5:30 p.m. Full details are here. The talk is free and open to the public. The talk will be followed by a panel discussion by four members of John Jay’s faculty: Margaret Bull Kovera (Psychology), Nicholas D. K. Petraco (Forensics and statistics), Lawrence Kobilinsky (Forensics and DNA), and Eugene O’Donnell (Police Science and Criminal Justice Administration). The panel will be moderated by Zachary Carter, former U.S. Attorney for the Eastern District of New York.

Why has the LAPD chosen to remain resistant to science-based eyewitness identification practices?

The title of an August 24 LA Times article says it all: “LAPD Reluctant to Change Its Handling of Photo Lineups.” Having lineups conducted by someone other than the detective assigned to the case, who knows which photo shows the person they suspect, is backed by decades of science, but the LAPD opposes it.

The reason for having someone other than a person who knows the “right” answer administer the lineup is based on a well-established scientific protocol to avoid unconscious human bias. Researchers long ago established that when the administrator of an experiment gives the subject choices from which to pick, the subject picks the right choice more often when the administrator knows which choice is the right answer. This is called the experimenter-expectancy effect. It is a form of cognitive bias, in which the person running the experiment who knows the preferred answer gives the subject making the choice subtle but unmistakable cues, without either intending to or realizing it. To avoid this, scientists :”blind” the person administering the experiment and communicating with the subject. The administrator therefore does not know the right answer, and therefore cannot communicate it.

Blind experiments are among the most basic requirements of science; we would never take an over-the-counter medicine if we knew that it hadn’t been tested this way.

And yet, with jurisdictions as different as New Jersey, Connecticut and Texas going with eyewitness procedures based on science, including blind lineup administration, LA Police Chief Charlie Beck continues to resist. According to the Times, Beck said “if you don’t adhere to the rules, either process is flawed. It’s more important to do them correctly than it is which process you use.”

No — wrong. I’m an admirer of Chief Beck (and his predecessor, William Bratton), after seeing the transformation of the formerly-broken LAPD into one of the better large police departments in the country. But in this instance, Chief Beck is wrong. What’s important is to move to a process that produces measurably fewer errors. Sure, people can screw up anything by doing it wrong. But the evidence is not in doubt: putting a person not involved in the case in charge of lineups eliminates bias — not because police are bad or unfair, but because they are human beings, subject to the same cognitive errors all human beings are.

Texas leads the nation in wrongful convictions. That’s why it’s interesting to find some of the state’s law enforcement leaders no longer mouthing the tired old tropes about why they can’t change eyewitness identification procedures. The state mandated some changes with a new law, which takes effect on September 1. So now some members of law enforcement in Texas say: it’s important, and we’re going to get it done.

A bit of background: last fall, two state senators introduced a bill requiring some basic science-based reforms in eyewitness identification procedures. The bill passed, and on September 1, police agencies conducting eyewitness identifications must do so using a sequential process (showing members of a lineup or photos of a lineup to a witness one person at at time). Police also must hold “blind” lineups, by having the lineup or pictures shown to the witness only by someone not involved in the investigation. And each agency must adopt a written policy on eyewitness identification. The bill requires other reforms, too.

When changes like this are proposed, there is usually wide resistance by police and prosecutorial leadership: these things will cost too much, be too logistically complex, and will be far too difficult for small agencies.

This is what made an article I saw in the Corpus Christi Caller-Times so striking. The piece concerned training for law enforcement on the new eyewitness procedures, conducted by Nueces County District Attorney Mark Skurka. According to the article, Mr. Skurka told about eighty officers that “the changes came about because of an increase in exonerations due to DNA evidence. Law enforcement and prosecutors previously relied mainly on eyewitnesses, he said, but that practice caused many wrongful convictions.” This made the reforms necessary, Skurka said, and “whether you have a two-man agency in Driscoll or a 150-man agency in Corpus Christi,” every agency will have to get on board.

Perhaps there’s nothing more to this than the fact that the legislature required the changes. I have no idea whether D.A. Skurka believed or articulated these ideas about wrongful convictions and eyewitness testimony before the legislation or not. But maybe that isn’t the point. Once there is a requirement in the law, he has to move his people toward science-based best practices. So, for advocates of change, making allies in the state legislatures to move these practices into law means everything. (See Chapters six and seven of Failed Evidence, available next month.)